Ken Womble — The Pandora’s Box Of Jury Nullification

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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31 Responses

  1. Oscar Gordon says:

    Beyond the equal protection implications, this law would open up a Pandora’s box of admissibility. If jurors are told they may consider a “just outcome” instead of the current assessment of whether the elements to a crime have been proven beyond a reasonable doubt, evidence relevant to that question becomes almost unlimited. The central question of guilt can become lost.

    This is an interesting consideration.Report

    • Damon in reply to Oscar Gordon says:

      I’m a big fan of determine the guilt or innocence of a defendant and then determining if the law he broke (if guilty) is a just law, not whether or not the outcome is “just”.Report

      • DensityDuck in reply to Damon says:

        Like the laws against lynching Obviously Guilty Black Men, I guess. Clearly unjust laws that need to be worked-around by jury nullification.Report

        • Don Zeko in reply to DensityDuck says:

          This, this this. It’s just as easy to screw up because Everybody Knows the defendant is guilty as it is to screw up because Everybody Knows the victim deserved it.Report

          • Damon in reply to Don Zeko says:

            @densityduck @don-zeko

            I don’t know how you can get from “the law is unjust so I won’t convict the guy even though he did it” to lynching, which is a “extrajudicial punishment by an informal group.”Report

            • KatherineMW in reply to Damon says:

              Well, isn’t there there’s a possibility of, for example, nullifying someone’s conviction for a hate crime because they think it’s been proved that the guy did it, but they’re opposed to hate crimes legislation? Or nullifying someone’s conviction for rape because they think the victim was “asking for it”.Report

              • Damon in reply to KatherineMW says:

                If I was on a jury presented with a crime and a hate crime adder, I’d have no problem convicting on the crime but not on the hate crime, so yah, but they are usually two counts.Report

            • Don Zeko in reply to Damon says:

              Because Lynching is closely related to the phenomenon of all-white juries refusing to convict the white murderers of blacks. Like Henry Marrow’s killers, for example.Report

              • Art Deco in reply to Don Zeko says:

                Your link refers to an ordinary homicide, not a lynching. There were only a scatter of lynchings in the United States after 1946. The last was a fellow named Mack Parker, who was abducted out of jail and murdered in Pearl River, Miss. in April of 1959.Report

              • Don Zeko in reply to Art Deco says:

                I didn’t say it was a lynching. I said it was related, and it was. This was the application of deadly force by the white community against a black man to enforce the prohibition against having the wrong kind of contact with a white woman, and the perpetrators almost certainly got off because of jury nullification. In other words, the judgment of the (white) community that there was nothing wrong with killing a black man in those circumstances.Report

              • Damon in reply to Don Zeko says:

                No doubt you have the same disagreement with judges issuing summary judgement acquitting the defendant ’cause that closed related as well, yes?Report

              • Don Zeko in reply to Damon says:

                Those acquittals are reviewable and must be justified in writing. There’s far more scope to correct an abuse of discretion in such a case than in a case of jury nullification, in which there is no ability whatsoever to do so.Report

              • Damon in reply to Don Zeko says:

                Really? Reviewable? If the judge issues summary judgement after the presentation of the case, isn’t double jeopardy attached?Report

    • I, too, think that’s an interesting consideration. But how likely is it that the change in jury instructions entails a change in what evidence is admissible?

      Even though I suspect the answer is “not likely,” I don’t intend that as a rhetorical question because I don’t know enough how admissibility standards are set and how they evolve.Report

  2. Will H. says:

    I was under the impression that was precisely what a motion for verdict notwithstanding the judgment was– nullification of the jury verdict.Report

    • Don Zeko in reply to Will H. says:

      Jury nullification isn’t normally a formal part of the judicial system at all. It’s a result of the constitutional rule against double jeopardy. Once a jury has acquitted a defendant in a criminal trial, no matter how strong the evidence against that defendant was, there is no way to re-try the defendant for that crime or correct an error that the jury made (nor should there be).

      But in theory the jury’s job is to make a finding of fact: did the defendant do what the indictment alleges he did? If the jury agrees that the defendant did it but acquits anyway because they don’t like the law, don’t like the victim, do like the defendant, etc. etc. etc., that’s jury nullification.Report

    • Burt Likko in reply to Will H. says:

      No, it’s the court entering the correct order after a jury has reached a result that lacks any evidentiary support whatsoever. Appellate courts look really hard for reasons to justify a jury’s verdict and it takes a very significant demonstration to get a court to overrule a jury. The deference is very strong, albeit not absolute.

      My fundamental objection to jury nullification is that a jury finding that a law is itself unjust is anti-democratic. The degree to which Justice is embodied within a law is fundamentally the province of a legislature. (This is not the same thing as a judge or group of judges finding a law unconstitutional because that is a finding that a superior level of law contradicts the law in question, and that is an inherently judicial activity). A jury is not a legislature nor is it the electorate, and lacks the political power to repeal or override the legitimate representatives of the electorate.

      In other words — I think the law criminalizing the consumption of marijuana is a bad idea, and the breeding ground for a wide spectrum of injustices. If I were on a jury, though, that’s irrelevant. I have to decide “was he defendant consuming marijuana or not?” and I would not hesitate to find the defendant guilty of the crime charged even though I strongly believe it ought not be a crime at all.

      A jury simply disbelieving the testimony of a given witness, even one who testifies without contradiction, well, that’s another story. That’s not nullification, in my estimation. It’s a finding of fact, which is what a jury is supposed to do.Report

      • Damon in reply to Burt Likko says:

        “My fundamental objection to jury nullification is that a jury finding that a law is itself unjust is anti-democratic.”

        Well given how a lot of laws are currently made by bureaucrats with no accountability to the electorate, I really don’t see the practical difference, with the exception that the jury, being essentially, the employers of the gov’t, SHOULD have final say on any law. Nullification just gives them the ability to cut through the red tape and take better direct action.Report

      • Burt,

        I have potential objections to nullification, but its being undemocratic is not one of them. In part because, what’s so great about “democratic” when other people’s life and liberty are on the line? As @damon suggests in his comment, the legislature is not necessarily very responsive to the people, even though it’s the most “democratic” branch of our government. At any rate, if the New Hampshire bill passes, then it is the legislature itself granting that power to juries, or at least acknowledging what some juries in practice already do, and thereby perhaps encouraging the practice further. If justice is the province of the legislature, why can’t the legislature “justice” as being constituted in part by jury nullification?

        And even though jury nullification is non-democratic in the senses you describe, it’s pro-democratic in another sense. It’s a check that ordinary citizens can exercise against the state. That check can result in unjust outcomes–which is one reason why I hesitate to endorse it fully–but it can also result in “just” outcomes.

        To another point:

        In other words — I think the law criminalizing the consumption of marijuana is a bad idea, and the breeding ground for a wide spectrum of injustices. If I were on a jury, though, that’s irrelevant. I have to decide “was he defendant consuming marijuana or not?” and I would not hesitate to find the defendant guilty of the crime charged even though I strongly believe it ought not be a crime at all.

        What if the punishment for consumption was the death penalty? That’s an unfair example, and perhaps a robust respect for the law requires a juror to find guilt on the facts even in that extreme case. But I do think some laws can be so unjust, or the punishment can be so unjust, that I’m not willing to completely reject jury nullification.Report

        • Then, to both @damon and @gabriel-conroy , why have legislatures at all? Convene a jury in each dispute, let them decide the justice of each situation.Report

          • Chris in reply to Burt Likko says:

            Worked for Athens.

            (We’re gonna need really big juries, though.)Report

          • Oscar Gordon in reply to Burt Likko says:

            Why have a legislature? Checks & balances. Since neither the courts nor the legislatures have explicitly forbid jury nullification, & the founders weren’t so concerned about a jury usurping the will of the legislature that they bothered to put it in the Constitution, then it exists as one of those unspecified rights for a reason.

            Prosecutors have the ability to usurp the will of the legislature, as do judges. And yes, their power to do so is explicit and is often misused for toward unjust ends. Why does jury nullification get all the hate?Report

          • We can take that even further and ask why grant pardoning powers to the executives? Or as Oscar suggests, why have prosecutorial discretion? Why give judges discretion to sometimes “temper justice with mercy”? Maybe you’re against those things, too, but accede to them because of common practice and constitutional (in the case of pardons) powers. Still, they suggest that in our current system, it’s not only the legislature that now holds the sole authority to define and set what is just.

            Or we can take that another direction and say “why not both jury nullification and legislatures?” There was a time when England had parliament, royal prerogative, courts of equity, and something like jury nullification (e.g., refusing to condemn people to death for the crime of hunting on the “king’s” land). It’s not unheard of to have competing systems of authority. That may or may not have worked out too well in a lot of cases–and I’m loathe to appeal to what’s happened as good just because it has happened–but it does suggest a polity can live with competing founts of “justice.”

            But I’ll answer your question directly. We have legislatures create the laws in an open forum. Provided those laws don’t intrude on the organic law limiting the legislatures’ purview (or don’t represent an arrogation of the powers granted to the legislatures by the organic law), those laws are presumed to be operative and in force.

            We’d have jury nullification to provide one check against the legislature going overboard in the one instance when the actions of the legislature results in the state acting against the citizen(s) whom it accuses. (I’m leaving undiscussed the issue of jury nullification in civil cases, because that doesn’t seem to be at issue in the NH law.) Jury nullification in that case makes it more difficult to convict someone–i.e., to take away someone’s property, life, or liberty–for violating that law.

            Jury nullification wouldn’t be a plenary meeting of THE JURY to opine on various and sundry laws the legislature passes. An instance of nullification doesn’t actually nullify the law for all time and all applications, but only for that one instance. Now, frequent instances of jury nullification could have that effect, which would in turn have the effect of repealing that law.

            And I admit that could create a lot of mischief. For example, if allowing judges to instruct juries to consider a just outcome results in white people being more marginally likely to get acquitted when they assault black people, and therefore results in more attacks on black people–that would be one heckuva a mark against jury nullification. It’s one reason I’m wary of it.

            For what it’s worth, the “why have legislatures” question doesn’t quite address the New Hampshire case. The NH bill would be an act of the legislature. If the legislature grants the power, do you still have a problem with it? (I imagine Damon might because it presumes the power is the legislature’s to grant, and as I read his comments, he doesn’t concede that point.)Report

            • There was a time when England had parliament, royal prerogative, courts of equity, and something like jury nullification

              I should have, but didn’t, mention that for all I know, jury nullification back then was as informal and officially unrecognized as it is now, so it wasn’t on par with parliament, royal prerogative, etc.Report

    • Saul Degraw in reply to Will H. says:

      As far as I know, Judgement Not Withstanding the Verdict is only available in civil trials.Report

  3. Jaybird says:

    Jury nullification is giving the jury the same discretion as the prosecutor.

    Depending on how you feel about prosecutors exercising this discretion, you’re likely to come up with scenarios that will strike you as this being a very good counter-balance or come up with scenarios that will just amplify how bad an idea it is to allow for discretion at all.Report

  4. LeeEsq says:

    Jury nullification has a lot of potential for misuse. The thing is that we are still dealing with many prosecutors who are either not exercising their discretion and trying to convict the entire world. We really need to end the war on drugs, stop having sex crimes statues applied against teenagers, and having children tried as adults among other abuses of prosecutorial and police power. For al its faults, jury nullification is still one of the most powerful tools to do so.Report